Heard the Special Public Prosecutor appearing for the petitioner as well as the Legal Aid Counsel appointed for the respondent / accused for interrogation.
2. The petition has been filed under Section 397 r/w 401 Cr.P.C., seeking an order to set aside the order, dated 25.05.2009 made in Crl.M.P.No.952 of 2009 in Spl.C.No.11 of 2007 on the file of the Principal Special Judge, Special Court under EC & NDPS Court, Chennai and direct the respondent to NCB custody.
3. Learned Special Public Prosecutor appearing for the petitioner contended that the Zonal Director, NCB, Mumbai, has intimated vide letter, dated 19.05.2009 that on 13.01.2006, Zonal Unit, Mumbai had searched and seized 5 Kgs of heroin from the residential premises situated at Flat No.303, B.1, Aman Apartments, Gaurav Sankalp, Mira Road (E) District, Thane and arrested one Santosh R.Solankio, a resident of Thane District, Mumbai. During enquiry, the said accused has given a statement, that was recorded under
Section 67 of NDPS Act that the seized heroin had been procured from Ramlal Gujar, a resident of Tagore Mohalla, Bhavani Mandi, Jhalawar District, Rajasthan. He has also given his description and identified his photograph. Based on the same, Mumbai Zonal Unit issued summon dated 10.02.2006 to the said Ramlal Gujar, the respondent herein. Since the seized contraband is a huge quantity of heroin, in order to prosecute the case properly, according to the learned Special Public Prosecutor, the custody of the respondent is required for the petitioner.
4. It is not in dispute that the respondent herein was produced under P.T.Warrant and he is now in the Central Prison, Puzhal, Chennai. As there was no representation for the respondent / accused, Mr.K.Govi Ganesan, Advocate is appointed as Legal Aid Counsel by this Court to defend the case of the respondent / accused.
5. Learned counsel appearing for the respondent raised his objection stating that the police / NCB custody is not legally possible, since the respondent herein was not arrayed as an accused and arrested in connection with the case referred to by the petitioner herein. In support of his contention, the learned counsel relied on the decision, The Central Bureau of Investigation vs. Anupam J.Kulkarni, reported in II (1992) CCR 113 (SC).
6. In the decision, The Central Bureau of Investigation vs. Anupam J.Kulkarni, reported in II (1992) CCR 113 (SC), the Hon'ble Apex Court has held as follows :
"10...However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can required his detention in police custody for the purpose of associating him with the investigation of the other case. In such situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody..."
In the aforesaid decision, the Hon'ble Apex Court has categorically laid down the ratio that an accused, who is in judicial custody cannot be sent to police custody for further investigation, unless there is a formal arrest of the accused in connection with the other case and obtaining proper order from the concerned Magistrate for the detention in police custody.
7. The learned Special Public Prosecutor contended that even if police custody is not possible, in the interest of justice, sought permission for the petitioner to interrogate the respondent in the jail premises, Central Prison, Puzhal, Chennai, where he is detained.
8. In order to get police custody of an accused, who is in judicial custody in connection with some other offence, two mandatory requirements are needed:
1. The accused who is in judicial custody could have been arrayed as an accused in the connected case also and a formal arrest of the person is also necessary; and
2. The Police or NCB authority must obtain the order of the Magistrate for the custody, as per procedure.
9. The learned Special Public Prosecutor relying on the decision of the Karnataka High Court, R.Mayilvahanam @ Mayil vs. Narcotic Control Bureau, reported in II (2003) CCR 299 contended that there is no prohibition for the Officer under
Sections 67 and
42 of NDPS Act to examine the accused persons, who are in the custody of Special Court in some other case in which he was not arrested or implicated.
10. As contended by the learned Special Public Prosecutor, any Officer referred to in Section 42 of NDP Act, who is authorised under the Act by the Central Government or a State Government, during the course of any enquiry, in connection with the contravention of any provision of this Act, call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any Rule or order made thereunder. It is a settled proposition of law that for interrogation under
Section 67 of NDPS Act, such power is vested with the Intelligence Officer. However, in view of the ratio laid down by the Hon'ble Apex Court, for seeking police custody or custody of the NCB Officers, there must be a formal arrest of the person, while he is in judicial custody, in connection with some other case. If formal arrest of the accused is made in the case in which his custody is required, the Magistrate is empowered to grant police custody on reasonable terms, as per law. If the person in judicial custody is not arrayed as an accused in the case, in which his custody is required, there could be no possibility for formal arrest of the person and seeking custody, by an order of the Magistrate.
11. In the instant case, admittedly, the respondent herein was not arrayed as an accused and hence, he could not be arrested in connection with the alleged offence committed by some other accused. In the aforesaid circumstances, custody cannot be granted by the Magistrate, in the light of the decision rendered by the Hon'ble Apex Court. However, as per
Section 67 of the NDPS Act, the petitioner, as the intelligence office of NCB is empowered to interrogate the respondent in the Central Prison, Puzhal, Chennai, after intimating the same to the Jail authorities. Accordingly, the petitioner is permitted to interrogate the respondent in the Central Prison, Puzhal, Chennai itself, as per the procedure contemplated under the Prison Manual.
12. This Criminal Revision Petition is disposed of with the above observation.
13. Mr.K.Govi Ganesan, Legal Aid Counsel is entitled to get a remuneration of Rs.3,000/- (Rupees three thousand only) for having defended the respondent, who is in prison.
tsvn To
1. The Principal Special Judge, Special Court under EC & NDPS Act Court, Chennai.
2.The Public Prosecutor, High Court, Madras